“Legal Options Are a Better Way to Beat Piracy Than Enforcement”

A new article, published in the American University International Law Review, suggests that affordability and availability are the key drivers to decrease piracy. Focusing on the supply-side is more effective than enforcement options such as lawsuits, infringement notices, and website blocking, the researchers conclude.

Piracy is an intriguing phenomenon. On the one hand, it is seen as an existential threat by the entertainment industries. However, pirates are often heavy consumers of legal content as well.

Over the past several years, a vast array of studies have tried to determine to what extent piracy hurts legitimate revenue streams and, equally importantly, how it can be stopped.

There are no definitive answers but each study adds a small piece of the puzzle. One recent article, published by University of Amsterdam researchers João Pedro Quintais and Joost Poort, suggests that affordability and availability are key drivers.

The researchers analyzed a wealth of data and conducted surveys among 35,000 respondents, in thirteen countries. What they found was that, between 2014 and 2017, self-reported piracy rates have dropped in all the European countries that were surveyed, except Germany.

In a 70-page paper, published in American University International Law Review, the researchers try to pinpoint the most likely explanation for this decline, starting with enforcement.

% Pirates on Internet population 2014 / 2017

In a detailed literature overview, the paper begins by discussing various enforcement activities, ranging from pirate site blockades, criminal enforcement, to civil suits against individual file-sharers. While some of these studies suggest that enforcement works, others reveal a limited effect or nothing at all.

This article doesn’t have space for a full review of all the literature, but the conclusion from the report’s authors is clear. Enforcement is not the silver bullet that will stop piracy.

“Despite the abundance of enforcement measures, their perceived effectiveness is uncertain. Therefore, it is questionable whether the answer to successfully tackling online copyright infringement lies in additional rights or enforcement measures,” the report notes.

Instead, the researchers believe that other factors are likely responsible for the decline in piracy rates. Specifically, they point to affordability and availability of legal content.

Through the extensive surveys, conducted in France, Germany, Netherlands, Poland, Spain, Sweden, UK, Brazil, Canada, Hong Kong, Indonesia, Japan, and Thailand, they find several clues that this may indeed be the case.

Many of the data presented by the researchers have been published before. For example, they show that piracy rates are higher when the gross national income of a country is lower. This effect is particularly visible for lower incomes, as shown below.

Pirates per legal user / GNI in 2014 and 2017

The authors further observe a clear increase in spending on legal content where piracy rates dropped. In addition, they point to an earlier study that shows how music piracy declined in the Netherlands between 2008 and 2012, while piracy rates were still increasing for films and series. By 2012, Spotify had been introduced in the Netherlands (early 2010) but Nexflix not yet and HBO only just.

Based on their analysis, the researchers conclude that affordability and availability are indeed key drivers for declining piracy rates. In particular, they found no conclusive evidence that anti-piracy enforcement is effective.

“The main takeaway from our research is that online piracy is declining. The key driver for this decline is the increasing availability of affordable legal content, rather than enforcement measures,” their paper concludes.

When the conditions are right, people will eventually consume more content legally, it’s argued. This is also backed by the finding that 95% of the self-proclaimed pirates in their survey were legal consumers as well. Many of these turn to piracy due to lacking availability or high costs.

“Where the legal supply of content is affordable, convenient and diverse, there is increasing consumer demand for it. Under the right conditions, consumers are willing to pay for copyright-protected content and toabandon piracy,” the paper reads.

This means that policymakers and copyright holders should direct their efforts more to the supply side, instead of enforcement activities.

“The crucial policy implication here is that policy makers should focus their resources and legislative efforts on improving those conditions. In particular, they ought to shift their focus from repressive approaches to tackle online infringement towards policies and measures that foster lawful remunerated access to copyright-protected content,” the researchers conclude.

This isn’t a new thought. Over the past several years, many people have hammered on the importance of appealing legal options. The new research confirms this. However, it is worth noting that the paper itself doesn’t provide any data showing that the recent drop in piracy is in fact caused by improved legal availability.

In other words, the empirical evidence doesn’t back either anti-piracy strategy conclusively.

For example, when we look at a graph of the piracy rates among legal users and the gross national income in different countries between 2014 and 2017 (shown above), we see that Sweden experienced the most pronounced piracy drop. However, there’s no clear change in legal availability compared to other countries, as far as we know.

TorrentFreak spoke to Joost Poort, one of the authors of the paper, who agreed that the lack of direct evidence is indeed a weak point. While there are several hints that the recent drop in piracy is mostly caused by better legal options, there is no hard data to back it up in this specific case.

Analyzing the effects of piracy is complicated, and there are signs that enforcement might also work in some cases. For example, just last week we reported on a study that showed how website blocking can motivate some pirates to sign up for a paid streaming service.

For many, however, it’s tempting to conclude that focusing on the carrot rather than the stick is the way forward.

That said, it’s also possible that the solution to piracy includes a little bit of both. While one may be more effective than the other, it’s safe to conclude that the puzzle isn’t solved yet.

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The full paper by João Pedro Quintais and Joost Poort titled: “The Decline of Online Piracy: How Markets – Not Enforcement – Drive Down Copyright Infringement”, is available here.